A seriously Flawed Human Rights Tribunal Decision Rules Against the Request of a Nine Year Old Boy with Autism Spectrum Disorder to Bring His Autism Service Dog to School

September 25, 2017

Summary

Here is yet another compelling reason why Ontario needs to enact a strong and effective Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act to tear down the many unfair disability accessibility barriers that impede students with disabilities in Ontario’s education system. Almost ten months ago, Premier Wynne promised to create an Education Accessibility Standard. Almost 10 months later, no Standards Development Committee has been appointed to start to work on it.

On August 30, 2017, the Human Rights Tribunal of Ontario rendered a controversial, seriously flawed and harmful ruling on the rights of students with disabilities in Ontario schools. The Waterloo District Catholic School Board refused to let a nine-year-old boy with autism spectrum disorder bring his trained service dog to school with him. The boy’s autism service dog could help him self-regulate his emotions and behaviours, so be can be more successful at school. His family brought a claim before the Human Rights Tribunal of Ontario against the school board under the Ontario Human Rights Code, arguing that the school board’s refusal violated the boy’s human right to equal treatment in education without discrimination because of his disability. The family argued that the school board had violated its duty to accommodate the boy’s disability by refusing to let him bring his autism service dog to school to assist him.

In J.F. v. Waterloo District Catholic School Board, the Human Rights Tribunal ruled against the young boy. It held that the student’s family hadn’t shown that the student needed to have his autism service dog with him at school, in order to equally benefit from education at school.

AODA Alliance Chair David Lepofsky, who is also a visiting professor at the Osgoode Hall Law School, offers analysis of this ruling, which we set out below. He aims if possible to make this the starting point of a longer analysis of this ruling for possible later publication.

This decision secured extensive media coverage. Below we set out articles in the recent media. These articles show the human cost of refusals to properly accommodate students with disabilities. The family was justifiably very upset by this ruling, and is taking the issue to Ontario’s ombudsman. One of the news reports refers to commendable efforts by Conservative MPP Michael Harris to protect the right of students with disabilities to bring their autism service dog to school, via a private member’s bill. We have not had a chance to examine that bill. We also set out a powerful article that appeared three and a half years ago in the February 3, 2014 edition of the Toronto Star.

We call on Ontario’s Minister of Accessibility, Tracy MacCharles, and Minister of Education, Mitzie Hunter, to issue a policy directive to Ontario school boards to counteract this erroneous Human Rights Tribunal ruling, and to protect the rights of students with disabilities to benefit from their trained service animal at school. The Ministry of Education regularly issues detailed practice directions to school boards across Ontario on a wide range of school issues, including on special education issues.

We strongly urge you to complete the Ontario Government’s online survey about disability accessibility barriers in Ontario’s education system. Please be sure to emphasize to the Government that a refusal to let a student with autism to bring a trained autism service dog to school with him or her is precisely the kind of barrier that the Education Accessibility Standard should remove. You have up to October 16, 2017 to complete the Government’s online survey.

At the end of this Update, we provide links to helpful background, and an explanation of how to sign up for or unsubscribe from these AODA Alliance Updates.

MORE DETAILS

Ontario’s Human Rights Tribunal Bungles the Human Rights Duty of Schoolboards to Accommodate Students with Disabilities — A Preliminary Analysis of the Human Rights Tribunal’s ruling on a Student’s Request to Bring His Autism Service Dog to School

By David Lepofsky C.M., O. Ont., Visiting Professor at the Osgoode Hall Law School and Chair of the AODA Alliance

The widely-publicized and controversial August 30, 2017 Human Rights Tribunal’s ruling in J.F. v. Waterloo District Catholic School Board is seriously flawed and troubling. That case rejected the claim by a nine-year-old boy with autism spectrum disorder that the Waterloo District Catholic School Board violated his right to equal treatment in education under the Ontario Human Rights Code. The school board had refused to allow the boy to have his trained autism service dog with him at school, to help him self-regulate his emotions and behaviours, in order to be able to better learn in school, despite the difficulties that autism spectrum disorder can cause.

This decision embodies an abject failure by both the Waterloo District Catholic School Board and the Human Rights Tribunal to properly apply human rights principles to a vulnerable student with an undisputed disability. This case painfully illustrates the serious and unfair disability accessibility barriers that students with disabilities too often still face in Ontario’s education system. It shows how families are unfairly required to repeatedly fight against the same barriers, at school board after school board. This case also exemplifies a serious flaw in Ontario’s current system for enforcing human rights, a new system that the Ontario Government established a decade ago over the strong objections of many from Ontario’s disability community. It shows why Ontario must enact a strong and effective Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act, to remove recurring disability accessibility barriers such as this in Ontario’s education system.

Here are just some of the problems with this Human Rights Tribunal decision.

School Board Did Inadequate Job of Exploring Solutions

The Human Rights Tribunal erroneously ruled that the school board had done enough in this case to fulfil its duty under the Ontario Human Rights Code, to investigate solutions, once it received the family’s credible request for a disability-related accommodation. Yet from the Tribunal’s reasons, there is no indication that the school board had taken several obvious, easy steps to investigate this issue. The school board had the burden to prove that it took all the needed steps to investigate this accommodation request, and that any further investigative steps would have caused the school board “undue hardship.” That is a tough test for a well-resourced publicly-funded school board to meet.

The school board’s human rights duty to investigate solutions is especially important, since this bears on the right to equal treatment in education for students with disabilities. This is a constitutional right which s. 15 of the Canadian Charter of Rights and Freedoms guarantees. It is also a quasi-constitutional right which the Ontario Human Rights Code guarantees. Students with disabilities are a historically vulnerable and disadvantaged group in society. Our education system has historically been designed in a way that fails to sufficiently take into account the accessibility needs of students with disabilities.

There were transparently obvious additional steps that the school board could and should have taken. The Tribunal decision does not even consider these steps. The Tribunal certainly did not make any findings that these steps were pointless or that they would have caused the school board undue hardship to even try.

First, there is no indication in the Tribunal reasons that the school board ever tried a trial run, by letting the student have his autism service dog school, even for a short trial period such as a day or two. There was no evidence recited in the ruling nor any finding that conducting a trial period, even a short one, would impose an undue hardship on the school board. If the school board was uncertain that the autism service dog would assist the student, a trial period was an obvious way to test this. A trial period was especially important because there is no suggestion that the school board, and especially any of its officials who dealt with this accommodation request, had any prior hands-on experience with, or expertise in, the benefits that an autism service dog can provide, in the school setting or elsewhere.

Second, there is no suggestion in the Tribunal’s reasons that anyone at the Waterloo Catholic School board took any steps to visit and observe the boy, using his autism service dog, outside of school. If the school board was skeptical that the autism service dog could help improve the boy’s learning, it would obviously have benefitted from seeing the impact that the autism service dog had on the boy’s behaviour. Visiting the family at a time and place where the student was using his autism service dog would certainly cause no undue hardship to the school board.

Third, the school board appears to have challenged the evidence of witnesses testifying at the human rights hearing on behalf of the student, on the basis that the boy’s witnesses had not observed the student functioning in his school class. The school board appears to have called into doubt the views of the family and their witnesses, on the need for the autism service dog at school, on the grounds that none of those witnesses against the school board had seen how the boy was behaving at school. Yet there is no indication that the school board invited the family or their witnesses to observe the boy in class for this purpose.

This obvious way to work towards a collaborative solution would also have afforded the family to point out aspects of the boy’s behaviours at school which the school board officials may have missed. School boards regularly tell parents of students with disabilities that the parents are the best experts in their child’s needs. What possible hardship could it cause the school board to take this simple step?

Fourth, the Tribunal’s reasons show that some school board officials were unconvinced that the student would benefit from having the autism service dog with him at school. According to the Tribunal decision, some school board officials even speculated (without any expertise or experience on which to base their views) that the presence of the autism service dog at school could set the boy’s progress back.

In these circumstances, the school board’s duty under the Ontario Human Rights Code to investigate solutions includes a duty to reach out to other school boards that have allowed students with autism to bring an autism service dog to school. The Waterloo District Catholic School Board could thereby find out how it worked out at other school boards. Yet there is no indication in the reasons that the school board took any steps to find out about the experience at some other Ontario school boards that allow students with autism to bring their autism service dog to school.

It is perplexing and puzzling that the Tribunal’s reasons reveal no exploration of evidence before the tribunal about the undisputed fact that there are other school boards in Ontario that have allowed students with autism to bring their autism service dog to school. The Tribunal said this about the evidence of an official from the Lions Foundation, who testified for the family:

“He stated that since 2008, the Lions Foundation has placed over 300 dogs across Canada from the autism program. Of the 300, there are about 280 who are currently active and of those, he knows of 60 who attend school with the student with a disability.”

Over three years ago, on February 3, 2014. The Toronto Star published a detailed article on the fact that some Ontario school boards allow autism service dog at school. This article is set out below. If other school boards can accommodate a student with autism, bringing an autism service dog to school, then the Waterloo Catholic School Board should equally be able to do so. This school board would have quite a hefty burden to prove the contrary. Nothing in the Tribunal’s reasons (including its detailed review of the evidence) suggests that the Waterloo Catholic School Board was in some difficult position, compared to other school boards in Ontario.

In 2017, it is seriously troubling that any school board officials would paternalistically claim to know better than the student, his parents, or those who train and work with autism service dogs, about the possibility that the service dog’s presence at school would be harmful for the student, especially when those school board officials did not take such simple steps as finding out about the experience of other school boards that allow an autism service dog to come to school, observing the boy working with the autism service dog outside of school, and/or inviting the family to observe the boy in school.

Wrong to Conclude that the Boy didn’t Even Need His Autism Service Animal at School

The Tribunal also erroneously rejected this human rights claim because it was not persuaded that the school board’s refusal to allow this boy to benefit from his autism service dog at school had a negative impact on him because of his disability. In plain language, the school board argued that the boy didn’t need his autism service dog at school. The Tribunal in substance agreed.

Yet the Tribunal reasons show that the student, while making progress at school, still had needs arising from his autism, even if he was making positive progress at school. There is no suggestion that the school board proved that the autism service dog would never and could never assist the student in any way, or that the boy’s autism could create no need under any circumstances for self-regulation, in order for the boy to fully benefit from the education to which the student was entitled.

The Tribunal erroneously set the bar far too low when it assessed the goal of education accommodation in this case. That approach would be harmful for students with disabilities more generally.

The Tribunal’s decision, evidently drawing upon the school board’s argument, found against the student in part because he was getting acceptable grades, was doing well and was making progress at school. This might at first seem sensible. Yet on a closer look, it unfairly dilutes the student’s human rights entitlement to classroom accommodation.

The student was entitled under the Human Rights Code (as well as under the Charter of Rights) to any accommodation that would enable him to learn to his potential. Even if he was happy, was progressing and was getting decent grades, the addition of his autism service dog could have helped him do better at school. The aim of education in Ontario is to learn and grow to a student’s individual potential. It is not merely to be happy, to make progress or to achieve some average or baseline.

The school board’s approach to this student’s disability accommodation, which the Tribunal in effect reaffirmed and certainly did not reject, also reflects a troubling paternalistic approach to the duty to accommodate people with disabilities. From the reasons, it appears that the school board or its key officials took the view that if anything, the student’s autism service dog could set the student’s progress back at school, in terms of his developing independence.

To be faithful to human rights principles, the Tribunal should have viewed such a claim with great caution and skepticism. Of course, a school board is not obliged to automatically accept any form of accommodation that a person with a disability proposes. The school board is entitled to assess the accommodation request.

However, properly applied, human rights principles should require an organization such as a school board to show some respect and deference to the individual with a disability, here the student and his family, regarding the appropriateness of an accommodation. The family has invested the time and effort to select the accommodation of a trained autism service dog, to meet the student’s undisputed need to self-regulate his emotional and behavioural responses to different situations. The service animal was obtained through an organization with extensive experience with autism service dogs. A school board should be reluctant about thinking it knows better, whether that accommodation is helpful.

A school board would not be viewed as being sensitive to a student’s needs if it concluded: “You don’t need those eyeglasses or that computer screen text enlarging software, in order to read. Glasses or special adaptive software are a form of dependency that you should avoid. We’ll instead give you large print books and documents, and that is enough to meet your needs.”

The risk of paternalistic stereotyping is manifest in the area of service animals. For example, decades of experience show that guide dogs can play an important role in enabling people with vision loss to be independently mobile. Of course, there is ample experience to show that people with vision loss (including myself,) can also be quite independent when trained to use a white cane. It would be an appalling violation of the Ontario Human Rights Code for a school board to tell a blind person that they cannot bring their trained guide dog to school, because blind people can manage just fine with a white cane. Indeed, one stereotype about guide dogs for people with vision loss is that they lead their owner to lack independence, because they depend on a dog. The paternalistic stereotype towards autism service dog emanating from the school board in this case, and to which the Tribunal erroneously gave an inappropriate free pass, appears quite similar.

Pressing Need to Fix Serious Problems in How Human Rights Are Enforced in Ontario since 2006

This case illustrates the fundamental and crushing unfairness in Ontario’s overall system for enforcing human rights. This has been the case in Ontario since controversial reforms to human rights enforcement were enacted in 2006.

The Ontario Human Rights Code unfairly left it to this boy’s family to privately hire and pay their own lawyer, to investigate the evidence, and prosecute this case at the Human Rights Tribunal. This was a seven-day hearing before the Tribunal. No doubt it also involved pre-hearing meetings or other processes, formal or informal. The cost to a family of hiring a private lawyer for such an extensive proceeding can be huge.

Making this worse, this family was up against the large and publicly-funded Waterloo Catholic School Board. The school board, unlike the student, had access to the public’s deep pockets to hire private lawyers, in order to wage a long and hard legal battle against the student and his family. This is not a fair fight. It leans heavily in favour of school boards, themselves government agencies, and against vulnerable and disadvantaged students with disabilities.

Ontario’s system for protecting and enforcing human rights was not always like this. In 2006, the Ontario Government made major changes to the enforcement of the Ontario Human Rights Code. Many in the disability community, and among other equality seeking groups, strenuously opposed those changes, including the AODA Alliance. Our objections were ignored by the Ontario Government. In an extraordinary move, the Ontario Government even used its majority in the Legislature in November 2006 to invoke closure, in order to cancel further upcoming legislative hearings at which these reforms were expected to be widely criticized. The AODA Alliance was one of the many organizations whose chance to present to those legislative hearings were cancelled as a result.

Before those 2006 changes to human rights enforcement, this family would have filed this human rights complaint with the Ontario Human Rights Commission. Back then, the Commission was a public law enforcement agency with the mandate to investigate, publicly prosecute and enforce such human rights cases. The Commission would have had the duty to publicly investigate this case and to try to mediate a settlement. If the case did not settle, and the evidence warranted a hearing (which is obviously the case here), the commission would have had the mandate to itself take this case to the Human Rights Tribunal, to publicly prosecute it.

Under the pre-2006 Ontario Human Rights Code, once a case got to the Human Rights Tribunal, the Ontario Human Rights Commission had carriage of the case at the Human Rights Tribunal. It investigated the facts, presented the evidence, cross-examined the school board’s witnesses and argued the case. It was represented by lawyers with expertise in human rights, paid for by the public. Back in those years, the family would not have had to hire a lawyer. Yet the family also had the right to attend the Human Rights Tribunal hearing, to also have a lawyer, and to present its own evidence, if it did not think the Commission was making all the points that needed to be made. Especially important here, the family would not have had to hire its own lawyer in order for this case to be effectively presented to the Human Rights Tribunal.

It is especially important in a case like this for the Human Rights Commission to be front and center at a Human Rights Tribunal hearing. This case clearly had obvious, sweeping public importance for others, including other students with disabilities. Having the Ontario Human Rights Commission at this Tribunal hearing, leading or at least helping with its prosecution, is all the more important when this young boy is up against the might of a publicly-funded school board.

Ontario’s new human rights enforcement system let down this family, and more generally, students with disabilities, in four major ways. First, when the Ontario Government privatized the enforcement of human rights in Ontario passed in 2006, the Government had promised it would provide free publicly-funded counsel to all human rights applicants from the beginning of the Human Rights Tribunal process to the end. That promise has been broken over and over since then.

A decade ago, the Ontario Government created the Ontario Human Rights Legal Support Centre, to advise and represent human rights applicants. However, that Centre is not funded sufficiently to enable it to serve all human rights applicants.

Second, even though Bill 107 privatized human rights enforcement, and took away the vast majority of the Ontario Human Rights Commission’s enforcement powers and duties, it left the Commission with the power to intervene in individual cases at the Human Rights Tribunal. From the Tribunal’s reasons in this case, there is no suggestion that the Commission exercised its rights to do so in this case. Since the enactment of Bill 107, the Commission has been properly criticized for not making fuller use of that power.

In this case, the Ontario Human Rights Commission profoundly let down students with disabilities. It should have intervened in this case and taken active part in the presentation of evidence and arguments, to address such glaring systemic discrimination. A decade ago, when the Ontario Government privatized human rights enforcement, it promised Ontarians that under it, the commission would be a stronger force in the battle against systemic discrimination. This case illustrates that the opposite has come true.

Over the past decade since it lost its major enforcement mandate and powers, the Human Rights Commission has invested much of its time and effort in developing policies on human rights issues, making public statements, and trying to raise awareness about human rights. We in the disability accessibility movement know only too well that policy statements and raising awareness, if not backed by effective enforcement, is incapable of bringing about the changes we need. Great policy statements on human rights mean far too little, when organizations, including school boards, can dig into the public purse and fund lawyers to vigourously oppose claims like those in this case.

Third, under the new approach to enforcing human rights, Ontarians were promised that the Human Rights Tribunal would take a more modern and activist approach to dispute resolution, practicing “active adjudication.” There is no indication that the Tribunal did so here. Rather than offsetting the incredible imbalance of power between the student and his family on the one hand, and the school board on the other, the Tribunal’s reasons leave critical and obvious issues uncanvassed such as those identified above – issues that should have led to a very different outcome.

Fourth, this young boy and his family faced a cruel choice after this seriously flawed human rights ruling. In theory, they have the right to seek judicial review of the decision in the Superior Court of Ontario, if they can prove that the Tribunal’s errors are so serious that they justify the court in overturning the ruling. This is a high threshold to meet. I do not here comment on whether a judicial review application should be pursued.

However, if the family went to court, it would face a new and unfair financial risk under Ontario’s post-2006 human rights legislation. The family would have to pile up more legal fees, paying their private lawyer to prepare and argue the court case. They also face the risk that if they lose in court, the court could and quite likely would order the family to pay the school board’s legal costs for the court review. For this family, this adds up to many more thousands of dollars.

In sharp contrast, before 2006, had the Ontario Human Rights Commission presented this case at the Tribunal and lost, it could bring the case to court for an appeal. The Commission would pay its own lawyers. The family would not have to hire and pay lawyers at all, if it did not wish to do so. If the Commission lost in court, it would be the Commission, and not the family, that would have to pay the school board’s court-related legal fees.

As such, the Ontario Government has created a new and serious financial barrier to access to justice for discrimination victims, which this case typifies.

Concluding Thoughts

It is important to emphasize what this Human Rights Tribunal decision did not decide or rule upon. It did not decide that it would cause an undue hardship for that school board to allow this boy to have his autism service dog with him at school. It did not decide that the school board could not accommodate the boy and his autism service dog at school. It did not decide as a general matter that school boards in Ontario do not need to accommodate students with autism by allowing them to bring an autism service dog to school.

All the Tribunal here decided, rightly or wrongly, was that on the specific evidence that the family presented, the family had not shown that this boy was disadvantaged in his educational opportunity by this school board’s refusal to allow him to bring his autism service dog to school with him. Indeed, if the same family brought the same request again, on better evidence, and/or if additional arguments were presented on the boy’s behalf, the school board would be required to reconsider this request afresh. The school board could not just point to this Tribunal ruling as a once-and-for-all declaration that an autism service dog never has any place in an Ontario school, whether for this boy or for any other students with disabilities. If the school board again refused, it would be open to the Human Rights Tribunal to reconsider the entire issue afresh. Hopefully, the next time, the Ontario Human Rights Commission would step up to the plate, as it should have here.

One of this case’s tragedies is this: Had this school board redirected just a fraction of the time, effort and public money towards trying to work out a way to let this student bring his autism service dog to school that it instead used to fight against this boy, the great likelihood is that a far more positive outcome would have been reached. Instead, the school board acted like a rigid public sector bureaucracy that resists change, and that has access to the public purse to tenaciously defend its actions.

This case also shows why there is a pressing need for the Ontario Government to enact a strong Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act. That accessibility standard should include strong protections for students with disabilities, like the student in this case, who want to bring a trained service animal to school. Students and their families should not have to fight against these disability accessibility barriers one school board at a time.

The opportunity remains for the Waterloo Catholic School Board’s elected trustees to take the high road, and to now do the right thing. Those trustees might wish to consider that Leviticus 19:14 sets out the world’s earliest law against discriminating against people with disabilities. “You shall not curse a deaf person or place an obstacle in the path of a blind person.” The Waterloo Catholic School Board should apply that principle to this situation.

Note: The assistance of AODA Alliance supporter and volunteer, Emily Lewsen, with background checking for this analysis, is gratefully acknowledged.

Global News August 31, 2017

Boy with autism not allowed to have service dog in class: Ontario Human Rights Tribunal
By Michelle McQuigge, The Canadian Press

Kenner Fee poses with his service dog Ivy in an undated handout photo. THE CANADIAN PRESS/HO/Craig Fee figure end
TORONTO –

Ontario’s human rights tribunal has ruled that a nine-year-old boy with autism can’t bring his service dog with him into class.

The decision says Kenner Fee’s family failed to prove that having his black Labrador Ivy in the classroom would help him with his education.

Adjudicator and tribunal vice-chair Laurie Letheren found that the Waterloo Catholic District School Board took all necessary steps to evaluate whether the dog was needed in the classroom, and supported the board’s decision not to allow the service animal to sit beside Kenner during lessons.

The tribunal heard from Kenner’s family that his autism leaves him prone to agitation, emotional outbursts and even bolting from his surroundings, but that having Ivy beside him significantly helps regulate his behaviour.

Letheren accepted that evidence, but also accepted testimony from school board staff suggesting Kenner was performing well in class without Ivy, and that any problems he was encountering would not necessarily be addressed by the dog’s presence.

Fee’s lawyer Laura McKeen says the family is crushed by the decision and is considering their next steps, including Kenner’s future education plans. She says the Fees have the right to appeal the ruling, but have not yet decided if they will do so.

“They truly believe that Kenner’s service animal Ivy is essential to his entire life, including and specifically his education,” she said.

“The Fees are devastated by the impact that decision is going to have on Kenner going forward.”

The Waterloo Catholic District School Board did not comment specifically on the decision other than to acknowledge the outcome in their favour.

“We work alongside families to make student-centred, individualized decisions that we collectively believe will allow them to flourish,” Director of Education Loretta Notten said in a statement. “Student success is of paramount importance to us and we strive to bring each one to their fullest potential.”

The Aug. 30 tribunal decision chronicles a fight Kenner’s family began in April 2014 to get Ivy into the boy’s class, something that has not been allowed to date.

The tribunal heard that Kenner had been matched with Ivy after training with the Lions Foundation of Canada Dog Guides, an internationally accredited school that provides service dogs to address a range of disabilities.

Kenner’s father, Craig Fee, told the tribunal that Ivy’s presence had made a noticeable difference in Kenner’s life and helped regulate his behaviour.

When he sought permission to bring Ivy into Kenner’s classroom, however, the request was denied.

Board employees told the tribunal there were concerns that Ivy would set Kenner back in his independence, adding that he may rely too much on the dog rather than working directly with staff and peers.

Kenner’s father and various professionals working with Kenner told the tribunal the boy’s anxiety got worse the longer he went without his service animal during school days.

The decision said that assertion was not supported by testimony from board staff, who said Kenner was largely compliant with instructions and generally functioning fairly well academically.

Behaviour tracking sheets submitted to the tribunal noted instances when Kenner allegedly tried to leave the school yard and even climb out a window, but a special education teacher downplayed the incidents in his testimony.

He said in both cases Kenner threatened to go through with an escape, but stopped upon being prompted by a teacher. The teacher also denied an incident noted in a behaviour tracking sheet indicating Kenner threw a chair, saying the student had never intentionally done anything to endanger himself or others.

The teacher testified that Kenner was not visibly upset in class, though he did tell the tribunal that Kenner would sometimes yell out for Ivy.

Letheren said that while having Ivy there would eliminate that issue, she said the dog “could not provide indicators about why the applicant may be feeling so stressed at school.”

Letheren also went on to note that Kenner is prone to “exaggerating his situation” according to testimony from both his father and a teacher.

Letheren said the board had taken appropriate steps to put learning supports in place for Kenner and that Ivy’s presence was not necessary.

“I find that the evidence demonstrates that the supports and strategies that the respondent has provided to accommodate his disability related needs are providing him the opportunity to realize (his) potential and develop into (a) highly skilled, knowledgeable, caring citizen who contribute[s] to [his] society,” she wrote.

The ruling was met with shock and dismay by some members of the autism community.

Laura Kirby-McIntosh, Vice-President of the Ontario Autism Coalition, said the decision represents a setback for education in the province since school boards can apply provincial accessibility guidelines according to their own discretion.

“The injustice here is that whether or not service dogs enter a school is going to be completely left to the discretion of 72 different individual school boards. To me, your rights should not change depending on your postal code.”

Currently, Ontario’s education act does not treat schools as spaces that are open to the public, which is what permits boards to bar service animals from the premises if they wish.

Kirby-McIntosh said there’s a pressing need for a province-wide education standard on all accessibility issues, including service animal access.

MPP Kitchener-Conestoga Michael Harris says the Ontario human rights tribunal decision
to deny a nine-year-old child with autism’s request to bring his service dog into the classroom is disappointing and frustrating.

Kenner Fee and his family were fighting an earlier decision made by the Waterloo Catholic District School Board (WCDSB) that forbid him from having the dog in class, but lost.

“Yesterday’s ruling was in fact a setback,” Harris told CBC News, “They failed to really uphold the Ontario Human Rights Code to accommodate in this case.”

Laura McKeen, the lawyer representing Fee’s family, told CBC K-W there was a “fundamental disagreement” between the family and the Waterloo Catholic District School Board when it comes to whose responsibility it is to prove the need for a service animal.

“What the board member found was that the onus, the responsibility to prove need was on the part of the applicant,” McKeen said.

The tribunal ruled in favour of the school board, who gave testimony that Fee was able to perform well in school without his service dog.

“Their evidence was that Kenner was being accommodated and he was basically achieving at grade level and that they didn’t see any further need for accommodation,” McKeen said.

Fee received his service animal with the support of The Lions Foundation of Canada Dog Guides. The animal had been with him everywhere except for the classroom.

The board’s director of education Loretta Notten did not respond directly to the case, but said in a statement sent to CBC News that staff “work alongside families to make student-centred, individualized decisions that we collectively believe will allow them to flourish.”

Currently the Waterloo Catholic District School Board reviews requests for service animals on a case-by-case basis.

Harris said right now there is a lack of consistency in how school boards treat children with autism who have service dogs. He hopes that his private member’s bill, the Ontario Service Dogs Act, will eliminate what he calls a “hurdle” for families when asking for accommodations for their children.

“I’m optimistic and hopeful that we can correct this problem for all families, right across the province, by passing the Ontario Service Dogs Act that would extend the same rights and privileges that are there currently for blind,” Harris said.

Under the Blind Persons’ Rights Act, any blind person who uses a service dog would not have had to go through the same process that Fee’s family had to for their son.

Harris’ bill has been re-tabled for the Ontario legislature this fall.

Kenner received his service animal with the support of The Lions Foundation of Canada Dog Guides, and the animal had been with him everywhere except for the classroom.

“It was [the father’s] position that the service animal was a right, that Kenner went through his therapy to learn how to use his service animal to cope with his disability and some of his disability-related needs,” McKeen said.

She added that their view is if someone has a disability, and has a doctor’s note confirming the service animal is required for disability-related needs, there shouldn’t be additional questions.

“There shouldn’t be any further obligations to second-guess that, to say ‘Prove to me why it’s needed in the classroom, prove to me why it’s needed at the place of employment,” McKeen said.

McKeen said at this point, the Fees are preparing their four children for the back-to-school season and have not planned for an appeal.

570 News September 6, 2017

The Fee family will now approach the Ombudsman of Ontario for help intervening, and hopefully overturning, Ontario’s human rights tribunal decision.

It comes nearly a week after the Fee family lost the fight for their autistic son Kenner to have his service dog named Ivy in class with him.

The Fee family says Ivy helps Kenner with his anxiety, so Kenner can focus on his studies.

Kenner’s father Craig told 570 NEWS that when Kenner found out about the ruling, he was both shocked and saddened. “We sat him down, and of course he burst into tears and so did his 7-year-old sister because she knows what this means for her brother.”

Fee adds, he hasn’t talked to anyone yet that agrees with the tribunal’s decision. “It’s still something that I can’t believe happened. We were thrown a bunch of words on a page and that was it.”

The fight to allow Ivy inside a Waterloo Catholic District School Board classroom began in April of 2014. From start to finish, the tribunal made their decision within two months.

Fee says battling the WCDSB was like David versus Goliath. “On one side, you have a family with one lawyer, and on the other side, there’s multiple lawyers and an infinite amount of taxpayer dollars to help them. Regardless of the way the tribunal is set up, it doesn’t help anyone.”

In an updated statement sent to 570 NEWS, the WCDSB says they stand-by the decision that was made:

“The Board’s policy and decisions were upheld by the tribunal. Student success is of paramount importance to us and we strive to bring each one to their fullest potential. We do have a policy that allows for service dogs, and we follow a consistent process for each child and make decisions based on a case by case basis. We work alongside families to make student-centred, individualized decisions that we collectively believe will allow them to flourish. As a board we have a responsibility to all our students and must make decisions in their collective best interest, balancing our resources to serve all to the best of our ability. Sometimes we may have differences of opinion with parents about supports and accommodations but we understand that we share the common goal of bringing them to their full potential. In most cases that does allow us to arrive at a mutually agreeable solution. We certainly understand the passion all parents bring to advocating in their child’s best interest. Loretta Notten, Director of Education.”

The Toronto Star February 3, 2014

The fight for autistic kids to have dogs at school; Parents push reluctant boards to change rules so children needing service animals can bring them.
Graphic: Braydon Drexler, 6, and his service dog, Keats. After a years-long fight, his Winnipeg school has agreed to accept the dog. But his mother, Tracey, says the conditions are so restrictive, she has begun to search for private schools.
Incredible changes have been seen in autistic teen Eric Segal, thanks to his service dog, Azra. Vince Talotta/Toronto Star
Parents of children with autism are battling school boards on an equal rights issue that promises to heat up ahead of this month’s provincial by-elections.

Do dogs belong in classrooms?

Families who have seen their easily agitated, sometimes non-verbal children blossom into calmer, more communicative kids around highly trained service animals think so.

Supported by lawyers and equal rights activists, they are fighting for the dogs to be viewed as assistive devices, no less essential than hearing aids in helping kids absorb curriculum.

But school boards have wildly inconsistent or nonexistent policies on the issue, forcing many parents to spend months – sometimes years – negotiating their way through the system as their children languish academically.

While federal law protects a blind person’s right to be accompanied in any public place by a service animal, the rights of children with autism who rely on trained dogs to keep them safe, regulate unruly behaviour and help them develop socially are not so clear.

National service dog agencies estimate that nearly 1,500 children with autism have been paired with an animal. The Star spoke with families from across Canada who have these animals. Several described drawn-out, draining meetings where “standoffish” board officials debated the value of the dogs.

They raised concerns about potential allergies, cultural sensitivities (can a child who is prohibited by religion from drawing an animal be in the same room as one?), strained resources (who would fill the dog’s water bowl?) and liability insurance.

Only one mother, Ali MacDonald, a nurse in the military community of Kingston, N.S., praised school and board staff for making the process an “easy” and positive one for her 11-year-old son, Noah.

“Parents of children with disabilities should not have to fight one school at a time, and one barrier at a time, to ensure that their kids can fully participate in and benefit from school,” said David Lepofsky of the non-profit Accessibility for Ontarians with Disabilities Act Alliance.

Having schools and boards across the province “reinvent the wheel” every time this issue arises “wastes public resources,” said Lepofsky.

His group is now campaigning for an Education Accessibility Standard.

“We aim to make this one of the issues in the two Ontario by-elections.”

ARCH Disability Law Centre, a Toronto-based legal aid clinic that defends and advances equality rights for Ontarians with disabilities, is also lobbying for a fair, standardized policy on service dogs in schools.

In Beamsville, Ont., after a year of discussions that included intervention from an equality-rights lawyer, Senator Gibson Public School agreed to take Kaitlyn Younger’s black Labrador named Catch, on the condition that if the dog relieves itself on school property, the Grade 2 student’s mother will clean the mess.

“They’ll put a pylon beside it in the schoolyard, they’ll call me and I have to come get it,” said Ingrid Hansen-Younger, who has spent the past year trying to help other families navigate the service dog issue with school boards.

School principal Andrea Grieve said the protocol is “part of our board’s procedure.” She said “having Catch has been a very positive experience for us.”

In Burlington, 10-year-old Sasha Pohl-Weary has a desk at the back of a classroom but spent most of the fall semester in her school’s dimly lit chill-out room or at home trying to manage her overwhelming anxiety. For some children, having autism is at times like being in a space crammed with television sets, each operating at a different volume with pictures blurring in and out, a sensory overload. That’s how a former special education teacher from Halton, Cate Hawkins, has come to describe it. Sasha calls it going black.

Reid, the shaggy dark Labrador she received from Lions Foundation of Canada Dog Guides in December 2012 helps reduce those episodes.

“If I get the dog engaged with her, it helps regulate her and bring her back down,” said Sasha’s mother, Colleen Pohl-Weary.

The school board says the issue comes down to staffing. Sasha does not have a devoted education assistant to direct the dog as needed. “If she hit other kids, she could get an EA but kids who implode don’t qualify,” Pohl-Weary said.

A spokeswoman for Halton District School Board said support is provided for students with disabilities based on individual needs. She would not explain what criteria the board uses to allocate resources.

A Lions Foundation trainer is working with Sasha to see if she can assume the trainer role herself though another national service dog agency advises families and schools against this practice.

“Children with autism are not in a position to independently handle and direct their dogs. The whole point actually is that they don’t,” said Danielle Forbes, executive director of Cambridge, Ont.-based National Service Dogs, the first agency in the world to train autism service dogs.

But even children who have an education assistant are not guaranteed access.

Sixteen-year-old Eric Segal of Vaughan shares two assistants with a handful of classmates at Stephen Lewis Secondary School.

Mom Sharon Gabison has been meeting with school and board members since last May. She described the initial gathering as “standoffish.”

“The general flavour was they couldn’t understand the point of the service dog,” she said. “At one point, I said, ‘It appears you’ve already made up your mind.’ ”

At home, Gabison, a physical therapist, said she’s seen incredible changes in her son since he received the Lions Foundation service dog. He sleeps through the night, no longer getting up to wander the house or neighbourhood. He picks up the telephone when it rings, more confident and capable of talking with whoever is on the other end of the line.

Eight months later, she is still hopeful the school can accommodate Eric’s dog, Azra. Last week, the board reviewed with her its draft protocol on service animals, which laid out a 15-point checklist of things that must happen before Azra can attend school. They assured her these are not barriers or delay tactics but she is skeptical because there is no mention of a time frame.

Also alarming is a proviso that parents bear the full financial burden of hiring a dog handler to work with the child on school property.

Steven Reid, York Region District School Board superintendent of student services, confirmed the protocol should be in place by year’s end, if not sooner. It will be posted publicly so everyone has a “clear understanding of the process.”

In deciding whether to accommodate a service dog, the York board’s draft protocol states school principals must consider the medical needs of students and staff (with respect to allergies), children with fear of dogs and those with a cultural sensitivity to animals.

“In cases where the accommodation of a service dog is required and there are medical or sensitivity issues in the class or school, provision may need to be made for the student and the service dog to attend either a different class or school,” the draft policy states.

Laurie Letheren, a lawyer with ARCH Disability Law Centre, said concerns about service dogs are often overblown because of a basic misunderstanding. “You’re not petting this dog,” she said.

Tracey Drexler has had enough. The Winnipeg mom will start scouting private schools for 6-year-old son Braydon this month even though technically she won her years-long battle with Sansome School and the St. James-Assiniboia School Division. She started when Braydon was in kindergarten and on the waiting list for a service animal. They requested a standard poodle because it’s hypoallergenic. She pressed the school division to create a policy on service dogs. Eventually it did.

While the school has agreed to conditionally accept Braydon and his dog, Keats, as of March, Drexler said the process has been excruciating and doesn’t consider it a win. She feels the amount of documentation they requested violated Manitoba’s human rights code and was a strategy to send her “running around in circles.” The school is insisting she purchase expensive liability insurance and will not allow the dog to take the bus for field trips.

She is also upset the school will be sending home a letter to parents about Braydon and Keats but has refused to tell her how widely it will be circulated or what it will say.

The school and the division have not responded to the Star’s requests for comment.

“It’s kind of ridiculous,” said Drexler, a nurse who took a leave from work to enrol in the education assistant program at University of Winnipeg so she could become a better advocate for her son and other children. She graduates this month.

She may have given up on Sansome School, but the battle isn’t over.

“I’m part of a group of six outspoken moms of children who have autism. We’re all going to be running for school division spots this fall to pass some new policies.”

We encourage you to use the Government’s toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.